No. 95-360

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

FARM CREDIT BANK OF SPOKANE,

a corporation, successor by

merger to The Federal Land

Bank of Spokane,

Plaintiff and Respondent,

v.

RONALD FULBRIGHT and GAYLE FULBRIGHT,

husband and wife; WILLIAM L. DICKSON and

BERTHA A. DICKSON, husband and wife;

DUANE SCOTT and RENAE SCOTT, husband

and wife; and LYNN BLAIR,

i

Defendants and Appellants.

APPEAL FROM: District Court of the Tenth Judicial District,

In and for the County of Fergus,

The Honorable John R. Christensen, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Ronald Fulbright, Coffee Creek, Montana (pro se)

For Respondent:

A. Lanch Tonn, Lucas & Monaghan, Miles City, Montana

Submitted on Briefs: November 9, 1995

Decided: December 12, 1995

Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.

Appellants appeal the order of the Tenth Judicial District

Court, Fergus County, granting Respondent an extension of the time

in which it may execute a foreclosure entered against Appellants.

We affirm.

Appellants Fulbright (Fulbrights) obtained a loan from

Respondent (Bank), and, as collateral, executed a mortgage in the

Bank's favor on certain real property. The Fulbrights subsequently

defaulted on the loan, and the Bank foreclosed the mortgage. The

Bank sold the foreclosed property for considerably less than the

amount of the loan, and obtained a deficiency judgment against the

Fulbrights for the amount still owed.

Under § 25-13-101, MCA, a party has six years in which to

execute a judgment, but § 25-13-102, MCA, provides that a judge may

extend the time allotted for execution. The Bank moved for such an

extension, which the District Court granted. The Fulbrights appeal

the order extending the time allowed for executing the judgment.

As the sole basis of their appeal, they allege that the Bank is a

foreign corporation and, as such, must obtain a certificate of

authority before conducting business in the state of Montana.

While the Fulbrights contend that the Bank is a foreign

corporation and the Bank contends it is not, we need not consider

this issue because we find the plain language of the pertinent

statute to be dispositive.

Section 35-l-1026, MCA, provides:

2
(1) A foreign corporation may not transact business in

this state until it obtains a certificate of authority

from the secretary of state.

(2) The following activities, among others, do not

constitute transacting business within the meaning of

subsection (1) . . .

(g) creating or acquiring indebtedness, mortgages and

security interests in real or personal property;

(h) securing or collecting debts or enforcing mortgages

and security interests in property securing the

debts . . . .

The activities the Bank has pursued in this case involve

creating a mortgage and collecting a debt by foreclosing on the

mortgage. Under the plain language of the above statute, it is

irrelevant whether the Bank is a foreign corporation or not. Even

assuming arguendo that it is, it need not obtain a certificate of

authority in order to pursue these activities.

The Fulbrights contend that 5 35-l-1026, MCA, is not

applicable in this case because the Bank initiated the foreclosure

action in 1988 and this statute was not enacted until 1992.

However, the Fulbrights have overlooked the predecessor to 5 35-l1026, MCA, which similarly provided:

[Al foreign corporation shall not be considered to be

transacting business in this state for the purposes of

this chapter by reason of carrying on in this state any

one or more of the following activities . . . (7)

creating, as borrower or lender, or acquiring

indebtedness or mortgages or other security interests in

real or personal property; (8) securing or collecting

debts or enforcing any rights in property securing the

same . . . .

Section 35-l-1002, MCA (1987). This predecessor to the current

§ 35-l-1026, MCA, was enacted in 1967, and therefore was in force

during all of the events pertinent to this case.

3
Because the Bank need not obtain a certificate of authority in

order to execute a foreclosure, regardless of whether it is a

foreign corporation or not, the order of the District Court is

affirmed.

Justlce

4
December 12, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Ronald Fulbright

c/o Box 98

Coffee Creek, Montana

A. Lance Tonn, Esq.

Lucas & Monaghan, P.C.

513 Main St.

Miles City, MT 59301

ED SMITH

CLERK OF THE +IPREME COURT

STATEX4TE~A